A coalition of 21 state attorneys general warned in a new letter that recently enacted Biden administration policies on sexual orientation and gender identity will threaten federally protected religious liberty and free speech rights.
The coalition sent a letter to President Biden dated July 7 asserting that two recent actions by the Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Education “threaten to impose unlawful regulatory guidance upon nearly every employer and educational facility in our states and throughout the country.”
The Biden administration’s actions, the attorneys general say, exceed what is required under the Supreme Court’s Bostock v. Clayton County decision. In that 2020 decision, the justices ruled that federal law prohibits discrimination in employment based on sexual orientation and gender identity.
The EEOC recently released a guidance document explaining how it interprets Bostock, while the Department of Education issued a Notice of Interpretation explaining how it will enforce its interpretation of Bostock.
The attorneys general letter charges that the EEOC guidance “appears to ignore” two of three “protections provided to religious employers.” Those two are Title VII of the Civil Rights Act of 1964, which has “express statutory exception for religious organizations” and the First Amendment’s protections of “the employment relationship between a religious institution and its ministers,” the letter says.
The Supreme Court’s Bostock ruling, the letter says, is “a statutory decision and cannot overrule the First Amendment’s guarantees of religious liberty.”
Meanwhile, the letter asserts the EEOC infringes on free speech by placing restrictions on pronouns. A Q&A on the EEOC website says that “use of pronouns or names that are inconsistent with an individual’s gender identity” can be “considered harassment” in “certain circumstances.”
“To be unlawful,” the EEOC says, “the conduct must be severe or pervasive when considered together with all other unwelcome conduct based on the individual’s sex including gender identity, thereby creating a work environment that a reasonable person would consider intimidating, hostile, or offensive.”
The attorneys general say the EEOC policy is an overreach.
“Bostock did not provide any basis for a claim that using biologically accurate pronouns could violate the law. To the contrary, the First Amendment protects the right to ascribe pronouns to others based on their sex,” the letter says, quoting an opinion by the Sixth Circuit Court of Appeals. “… With respect to pronouns, the EEOC’s guidance comes across as an effort to leverage the authority of the federal government to chill protected speech disfavored by your administration.
“In addition, some gender dysphoric or transgender individuals prefer novel pronouns to the traditional masculine or feminine pronouns,” the letter says, referencing such “pronouns” as fae/faer/faers/faerself, per/per/pers/perself, ve/ver/vis/verself, xe/xem/xyr/xyrs/xemself and ze/hir/hirs/hirself. “… Nothing about Bostock’s reasoning suggests that an employer would violate Title VII by refusing to adopt an employee’s nontraditional pronouns.”
The letter also accuses the Department of Education of violating federal law related to sports and the usage of locker rooms and restrooms.